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Why We Must React to ACTA

by Glyn Moody

on July 24, 2008

A new global standard for the enforcement of intellectual monopolies is currently being discussed by representatives of the United States, the European Commission, Japan, Switzerland, Canada, Australia, Korea, Mexico and New Zealand. This new agreement is so important that it must be drawn up in secret, safe from the prying eyes of little people like you and me. Thanks, however, to the indispensable Wikileaks, a discussion paper outlining some of its possible proposals has surfaced, and from this it is clear that it represents a serious threat to online liberty in general, and to the practice of free software in particular.

The name of the “Anti-Counterfeiting Trade Agreement” – ACTA – is indicative of the overall approach being taken. First, this is a trade agreement, which means that it by-passes many of the more open processes for drawing up international agreements. This has allowed it to be discussed in secret, amongst a cosy club of interested parties and their chums – notably, those in industries based on exploiting intellectual monopolies.

Moreover, this is an invitation-only club, which has led to the exclusion of most developing countries, and hence most of the world in terms of population. It is nothing less than cyber-imperialism by the rich countries that for so long have imposed their agendas on the rest of the globe, but which finally see their traditional hegemony threatened by the rise of new powers – and new ideas. ACTA is a last-ditch attempt to lock the world into an old and outdated mindset.

Secondly, ACTA cleverly proclaims itself to be about combating counterfeiting – something that few people would object to in principle: nobody wants counterfeit medicines, for example. But a perusal of the Wikileaks document shows that this is just a bit of window-dressing: the agreement is really about strengthening the enforcement of intellectual monopolies around the world, with counterfeiting a secondary issue. Indeed, the opening paragraph of the discussion paper reveals its skewed world-view that places intellectual monopolies at the very heart of the world economy:

The proliferation of infringements of intellectual property rights (“IPR”) particularly in the context of counterfeiting and piracy poses an ever-increasing threat to the sustainable development of the world economy.

Of course, this completely overlooks the rapid rise in recent years of alternative business models that involve sharing information – open source, open access, open content etc. - rather than hoarding it, with growing success.

The need to “fight back” against this Net-based culture of sharing without commercial gain is also evident in the following:

Criminal sanctions (in addition to civil or, where applicable, administrative liability) to be applied to IPR infringements on a commercial scale

- significant wilful infringements without motivation for financial gain to such an extent as to prejudicially affect the copyright owner (e.g., Internet piracy)

The approach that ACTA will take is hard to discern from the generalities of the briefing document, but fortunately we have some clear hints in the published submissions from interested parties in which they express they hopes for ACTA.

ensure that ISP's are required by law to engage in reasonable business practices with respect to the detection and removal of infringing files, preventing access to their networks on the part of known infringers; terminating the accounts of repeat or serious infringers

In other words, the old “three strikes and you're out” idea mandated across most of the developed world – and ultimately beyond.

Perhaps the most revealing of the submissions comes from the Business Software Alliance, since it exposes the flawed thinking that pervades the proposed ACTA agreement. For example:

BSA companies, and the software industry as a whole, lose billions of dollars to software piracy each year. In 2006 35% of PC software placed in service was illegally copied. In many countries the piracy rate exceeded 75%, reaching highs of 90% or more in some markets. The resulting losses total more than $39 billion worldwide. These losses have an impact on local economies around the world that go well beyond the direct impact to software producers. A recent IDC study estimates that reducing software piracy by 10 points over four years could stimulate the entire IT sector and produce 600,000 new jobs, $24 billion in increased tax revenues and $141 billion in new economic growth.

The fallacies in this argument are plain. It presupposes that the illegal copies would be replaced by paid-for ones, whereas we are in fact seeing a considerable uptake of free software as countries around the world reduce their dependence on such illegal copies of proprietary software. Moreover, the use of illegal copies obviously saves money in the countries concerned, and so has a positive impact on local economies, contrary to what BSA tries to suggest. For an even fuller evisceration of the BSA's specious arguments, read Mike Masnick's excellent analysis.

As Masnick makes clear, BSA has been hawking these old wares for some time now; this suggestion from the BSA's submission is new, though – and highly pernicious:

Overly strict interpretations of national data privacy rules increasingly impeded enforcement against an array of wrongs that occur on the Internet, including copyright theft – often leaving victims without any means of redress. ACTA partners should ensure that the interpretation of data privacy rules appropriately balances the fundamental rights of privacy and property, including intellectual property, in such a way as to encourage meaningful cooperation with telcos/ISPs, in particular the implementation of a “graduated response” mechanism.

Translation: “some European judges have dared to interpret the EU's strict laws on privacy in favour of end-users. We need to use ACTA to over-rule this pesky privacy stuff so that we can apply unhindered the “three strikes and you're out” approach to anyone, anywhere, whatever local laws say.”

Note, incidentally, the deft way the paragraph above talks of “the fundamental rights of privacy and property, including intellectual property”, neatly skating over the fact that “intellectual property” is in fact an intellectual monopoly, and seeking to give such monopolies “rights” in the same way that privacy and real property have.

Despite these clear hints as to what the backers of ACTA would like to see in this agreement, it is hard at the moment to be very precise about what effects it will have, other than fear the worst. Its whole tenor is that the Internet is a bad, evil monster that must be tamed for the sake of the intellectual monopolists. Its secretive genesis is indicative of the fact that the opinions of those most affected by it – the general public – are accounted of no importance: ACTA is purely for the benefit of the monopolists, which continue to hold a disproportionate sway over top politicians.

Because of this vagueness, and the lack of democratic input or oversight, it is also very hard to fight this shadowy monster, but that doesn't mean we shouldn't try. As the Free Software Foundation notes:

ACTA threatens free software

It makes it more difficult to distribute free software: Without file sharing and P2P technologies like BitTorrent, distributing large amounts of free software becomes much harder, and more expensive. BitTorrent is a grassroots protocol that allows everyone to contribute to legally distributing free software.

It will make it harder for users of free operating systems to play media: Consumers will no longer be able to buy media without DRM -- and DRMed media cannot be played with free software.

It increases the chances of getting your devices taken away: Portable media players that support free formats are less common than devices which support DRM, such as the iPod. Will this make them suspicious to border guards?

It creates a culture of surveillance and suspicion, in which the freedom that is required to produce free software is seen as dangerous and threatening rather than creative, innovative, and exciting.

As well as spreading information about ACTA, the other thing everyone can do is to contact their elected local representatives. The fact that they, too, have been left out of the secret deliberations is unlikely to endear ACTA to them. If enough of them in enough of the ACTA countries start to kick up a fuss, we might at least have a chance to debate the issues out in the open, and thus expose the dangers. If we don't act now, it will be too late, and ACTA – however bad it turns out to be - will simply be enacted.

Glyn Moody writes about openness at opendotdotdot.

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